Not Blameless, But Not to Blame

We agree, and we applaud President Reif's open stance and his decision to commission the report. The committee's research is thorough; the treatment, balanced; and the questions, important. The committee's chair understands MIT, he is himself a pioneer in open publishing, he is highly objective, and he and his team put astonishing effort into the work. It was the right thing to do, and it was done by the right people.
And because we are who we are, everyone in our community should look carefully at the factual data in the Abelson report before becoming prejudiced by the opinions abundantly offered in the media, on the Web, and in this editorial.

But once we have read, we must discuss, because no institution, including MIT, can be what it aspires to be unless it uses the past to improve the quality of its future. In that spirit, we have read the report and offer our contribution to the engagement and exploration that President Reif has encouraged.

Like the Abelson committee, our purpose is not to assign blame. Instead, we focus on what we believe are among the lessons to be learned.

Lesson 1: Reasonable today may not be so reasonable tomorrow

Anyone can construct scenarios in which it would be right to let a criminal case run its course. Just after Swartz's arrest, when not much, if anything, was known, other than that Swartz was not and never had been an MIT student, neutrality lay in the (reasonable) part of the space of possible positions.

Over time, however, more came to be known about ties to MIT: Swartz's father, Robert, was a consultant at the Media Laboratory; Swartz's two younger brothers had been interns in the Media Laboratory; and Swartz himself hung around MIT's Student Information Processing Board and participated in activities of MIT's World Wide Web Consortium. So it appears that Swartz could have been considered a member of what might be called the greater MIT community. Moreover, some have suggested that there is a still greater community to consider: that of technically educated people who share some of MIT's values, such as open access to scientific publications, codified in the MIT Faculty Open Access Policy.

Presumably, such connections came out in meetings between Swartz's father and our administration, in letters directed at MIT's administration, and in meetings between Swartz's counsel and MIT's counsel – but once it was decided to be neutral, the administration stuck doggedly to that neutral position through multiple reviews. Maybe if emerging mitigators were more carefully considered in those reviews, we would have shifted our position toward engagement.

Lesson 2: Confirmation bias may lead to strange conclusions

Evidently, the administration was influenced by notes prepared by MIT's external counsel following a conversation between him and the lead prosecutor:

The prosecutor said that the straw that broke the camel's back was that when he indicted the case, and allowed Swartz to come to the courthouse as opposed to being arrested, Swartz used the time to post a “wild Internet campaign” in an effort to drum up support. This was a “foolish” move that moved the case “from a human one-on-one level to an institutional level.” The lead prosecutor said that on the institutional level cases are harder to manage both internally and externally.
The administration concluded that any public statement made by MIT might similarly have a negative effect by similarly irritating the lead prosecutor, but the analogy seems strained and hard to support in the face of obvious questions. Surely a carefully thought through statement from MIT is very different from an Internet petition.

And is it not possible that the prosecutor's remark was a clever gambit intended to dissuade MIT from making a statement that would make prosecution untenable? And shouldn't MIT do the right thing whether or not a sensitive prosecutor is irritated? Was the administration just looking for confirmation of a decision already made?

Ask why five times is one of the maxims recommended by W. Edwards Deming, the statistician largely responsible for the high quality in Japanese manufacturing after World War II. Maybe if the administration had followed Deming's maxim and asked why five times we wouldn't have seen such strong support for neutrality in the prosecutor's reported remark.

Lesson 3: Lack of public interest is not a good reason for inaction

The Abelson report notes that few in the MIT community expressed interest in the evolving Swartz situation. Why? Perhaps because Swartz knew that what he was doing was illegal and did it deliberately and repeatedly. Perhaps because there was a sense that, unlike in other cases that have attracted serious community attention, Swartz was not perceived as one of our own. Perhaps because the prosecutor's hard line on a plea bargain was not generally known.

Whatever the reasons, the Abelson report indicates that the lack of community interest was a factor in MIT's decision to remain neutral.

But mitigating factors seem to have been known to the administration; likewise the administration knew that those factors were not widely known. So lack of community interest should not have been a decisive factor in shaping MIT's position.

Lesson 4: We need to get better at community engagement

In his letter to the community, President Reif articulated the need for reflection on big issues: “I have therefore asked Provost Chris Kaiser to work with Faculty Chair Steven Hall to design a process of community engagement that will allow students, alumni, faculty, staff, and MIT Corporation members to explore these subjects together this fall and shape the best course for MIT.”

That we need to design a process of community engagement is itself worthy of note because it suggests we do not have one ready at hand. In the past, recent and distant, we have opened up Websites, we have witnessed vigorous faculty-meeting debates, we have conducted community forums at various temperatures, and back during the Vietnam War, we took to the streets. But none of these were designed processes of sincere and effective community engagement. Accordingly, we hope that the process designed by the Provost and the Faculty Chair will be innovative and serve as a useful positive precedent.

Lesson 5: Civil disobedience requires eyes wide open

We honor those – Thoreau, Gandhi, Mandela, and King come to mind – whose distaste for existing laws leads them to break those laws deliberately, and we should honor Swartz for breaking a law he considered highly distasteful, whether we agree with the law or not. To this day there is disagreement about what Swartz was doing. Some contend that he was downloading the material simply for the purposes of comparison and analysis. Others think that because Swartz was an activist for open access to Internet resources, he was downloading the journal articles of JSTOR in the first place because he thought the knowledge there should be available freely to everyone – not just those with university connections. Because the profits of JSTOR did not go to the academics who wrote the articles in question anyway, but to the company that put them on the Web, his was a Robin Hood act. Unfortunately, Swartz did not expect to get caught, he did not comprehend what could be thrown at him by an aggressive prosecutor, he did not anticipate the threat of a felony conviction and jail time, and he was said to have a history of depression, which, if so, indicated heightened vulnerability to suicide.

That Swartz did commit suicide instantly turned a little-noted policy question into a widely discussed controversy. No one can doubt that wide discussion is good. What's tragically bad is that the discussion comes at a high price, with nature and events combining in such a way as to deprive the world of decades of advocacy by someone who had important things to say.